Judge drops Padilla terror charge

Padilla, codefendants faced double jeopardy, ruling says

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MIAMI, Florida (CNN) -- A federal judge in Miami on Monday dismissed a terror count against Jose Padilla, the U.S. citizen once identified as a "dirty bomb" suspect and detained as an "enemy combatant."

U.S. District Judge Marcia Cooke said in a written opinion that the charge -- conspiracy to "murder, kidnap and maim persons in a foreign country" -- duplicated other counts in a federal grand jury indictment handed down last year.

"An indictment is multiplicitous when it charges a single offense multiple times, in separate counts," Cooke wrote. As charged, she added, the indictment exposes Padilla and his co-defendants to multiple punishments for a single crime.

The indictment, Cooke noted, "alleges one and only one conspiracy" and that the same facts are "re-alleged in each of the consecutive counts."

Cooke also ruled that a second count against Padilla and his co-defendants was "duplicitous" -- charging them with the same offense under two sections of federal law. She ordered the government to choose between the two counts, which provide for different penalties, by Friday.

The counts in question are conspiracy to provide material support to terrorists, and providing material support to terrorists.

''We stand by the charges in this indictment and will respond after a full review of the court's order," U.S. Attorney R. Alexander Acosta said.

Padilla has pleaded not guilty to the indictment, and a trial is scheduled early next year.

Padilla was arrested in May 2002 returning from overseas at Chicago's O'Hare International Airport. He initially was detained as a material witness in the investigation of the September 11, 2001, terror attacks.

President Bush designated him an enemy combatant the next month and turned him over to the military.

Padilla, who the government alleges has al Qaeda ties, was added to the South Florida indictment in November. Two co-defendants -- Adham Hassoun and Kifah Wael Jayyousi -- also have pleaded not guilty.

A fourth defendant, Mohamed Hesham Yousef, is in custody in Egypt. The whereabouts of a fifth defendant, Kassem Daher, is not known.

The indictment alleges the men belonged to a North American terrorist support cell and intended to carry out jihad, or holy war, in foreign countries.

Padilla was originally accused of -- but never charged with -- being a potential "dirty bomber," plotting to detonate a crude radioactive device in the United States, and later scheming to blow up apartment buildings using natural gas.

The Brooklyn-born Padilla has previously served prison terms for juvenile murder in Illinois and gun possession in Florida. He converted to Islam when he moved to Egypt in 1998, taking the name Abdullah al-Muhajir.

According to the government, Padilla trained at al Qaeda military camps in Afghanistan in 2000, after being recruited by a Yemeni man he met on a pilgrimage to Mecca.